Reform Of Immigration System

From the Law Offices of Melissa Harms:

We are pleased to announce that President Obama unveiled a long-awaiting plan to reform the immigration system on November 20, 2014.  His executive action brings immediate relief to as many as 4.4 million undocumented foreign nationals living in the US through a few key programs:

Deferred Action for Childhood Arrivals (DACA)The DACA program allows people who came to the US before the age of 16 and meet certain qualifications to remain in the United States without fear of deportation and receive work authorization.  Under President Obama’s executive order, the expanded DACA program removes the upper age limit for qualified applicants and extends the work authorization to 3 years.  The USCIS has announced that it will begin to accept work permit applications for this new category of DACA applicants in 90 days.

Deferred Action for Parents (DAP)This new program will allow parents with US citizen or Lawful Permanent Resident children to remain united with their families. These parents must have been in the US since January 1, 2010, pass a criminal background check, and pay back taxes in order to qualify.  The USCIS expects to start accepting applications for work permits to qualified DAP applicants in 180 days.

Provisional WaiversThe executive order expands the provisional waiver program to allow spouses of lawful permanent residents and sons or daughters of both US citizens and lawful permanent residents to apply for waivers.  These waivers are required when the foreign national is eligible for a green card, but have been in the United States unlawfully.  Under this program, the applicant can apply for the waiver in the United States, then once the waiver is approved, leave the United States to obtain an immigrant visa at a US embassy abroad, thereby avoiding months or even years of separation from family members while awaiting waiver processing abroad.

President Obama’s executive action also has a significant and positive impact for U.S. businesses and highly skilled professional workers by announcing several reforms to employment-based visas.  The agencies implementing these programs will announce the details over the coming months, but below are the broad outlines of these changes:

Benefits for Employees With Approved Immigrant Visas Awaiting a Priority Date:  Under the current system, an employee with an approved immigrant visa must wait for their priority date to become current before being eligible to apply for a green card.  Under this initiative, 410,000 employees awaiting green card visa numbers could apply for certain benefits such as Employment Authorization Documents (EAD) and Advance Parole (travel) documents.   US Citizenship and Immigration Service (USCIS) must write implementing regulations for this initiative; thus these changes will not go into effect for several months.

Revamp the Allocation of Immigrant Visas:  Currently the Department of State uses a complicated system to determine how to allocate immigrant visas that allow beneficiaries to apply for green cards.  Under President Obama’s executive action, the USCIS will work with the Department of State to simplify the existing system and ensure all immigrant visas are issued each year.  This could result in the recapturing of thousands of unused visa numbers.

Worker Portability Under AC-21: Under current law, an employment-based adjustment of status applicant can change jobs after the application has been pending for 180 days, but only if the new position is in a “same or similar” occupational classification as the position through which s/he obtained the immigrant visa.  The USCIS will issue a policy memo to clarify the meaning of “same or similar,” thereby allowing workers for example to accept promotions to a supervisory level or accept related jobs in their field without fear that their underlying approved immigrant visas will no longer be valid.

Work Authorization for H-1B spouses:  USCIS will publish a final rule allowing the H-4 spouses certain of H-1B workers to apply for employment authorization.  The H-1B holder must 1) have an approved immigrant visa petition or 2) have a PERM labor certification pending for at least one year.  This regulation is expected to be published in the next several months.

L-1B Specialized Knowledge: The L-1B intracompany transfer program allows the transfer of employees from a foreign entity to the US who have “specialized knowledge” of the company’s products or processes.  The USCIS will issue a policy memo to provide clear guidance on the meaning of “specialized knowledge,” which will bring about more consistency in adjudications, a higher approval rate, thus making the L-1B visa status more accessible to qualified employees.

Optional Practical Training (OPT) Work Authorization: Currently, foreign students in F-1 student status are eligible for 12 months of OPT work authorization.  If they are students in science, technology, engineering, and mathematics (STEM) fields, they can apply for an additional 17 months of OPT.  Under President Obama’s new initiative, USCIS and Immigration and Customs Enforcement (ICE) will develop regulations to increase the length of OPT time and expand the type of degree programs eligible for this extended OPT work authorization period.  These changes are expected in the next several months.

National Interest Waivers and Parole for Inventors, Researchers, Founders:  The USCIS will issue guidance to clarify the standard by which to grant national interest waivers to foreign inventors, researchers, and founders of start-ups. USCIS will also initiate a program granting “parole” to inventors, researchers, and founders at an early stage in their careers or positions who do not yet qualify for a national interest waiver, but who have either been awarded US financing or hold the promise of innovation.  This “parole” will allow these individuals to enter the US temporarily to pursue their activity.

Labor Certifications: The Department of Labor will review the existing PERM program and initiate changes to modernize the system so that it aligns with the current recruitment practices for most professional occupations.  The exact changes to the PERM system have not been announced yet.  Further guidance is anticipated shortly.

Although Congress has yet to act on immigration reform, we applaud President Obama for taking a step to fix our broken immigration system.  There will be further discourse on these programs as Congressional leaders have vowed to block their implementation, but we are hopeful that millions of workers and families will benefit from this key policy announcement.  We look forward to keeping you updated over the coming weeks and months as the details are unveiled.

If you feel that you may benefit from any part of President Obama’s executive action, please contact the Law Office of Melissa Harms at 415.945.9600 extension 2 or via email at [email protected] to schedule a consultation.